Vol. III.]

PENTZ v. CLARKE.

[No. 1.

2. If the jury believe from the evidence that J. W. D. Pentz was part owner of the steamer Massachusetts, and that Joseph White was the master of said vessel, and as such did order and contract with the plaintiffs to do the work and make the repairs on said vessel charged for in the cause of action, and that such repairs and work were reasonably necessary for the proper outfit and management of said vessel, and were made by the plaintiffs, then their verdict must be for the plaintiffs, even though they find that said Pentz did not order said work and materials or expressly agree to become responsible for their payment.

And the defendant offered the following prayers:

1. That if the jury find from the evidence in the cause that the bill sued upon was contracted by the said Joseph White, without the knowledge, privity, or consent of John W. D. Pentz, and without his authority; that at the time of so doing the said White was the registered half owner of said boat; then plaintiffs are not entitled to recover, unless the jury further find from the evidence in the cause that said Pentz subsequently ratified the contracting of said debt by said White, and that there is no evidence in this cause from which the jury can find that said debt was contracted by the authority of said Pentz, and with his knowledge, privity, or consent, or that said Pentz subsequently ratified the same.

2. That if the jury find from the evidence in the cause that the debt sued upon by the plaintiffs was contracted by the said White, and at the time of contracting the same he was the master of said steamer, and that the debt so contracted by him was contracted without authority of said Pentz, and without his knowledge, privity, or consent, and was not subsequently ratified by said Pentz, then the plaintiffs are not entitled to recover, and that there is no evidence in this cause of such authority or subsequent ratification.

3. If the jury find the debt offered in evidence, and that it was contracted by Joseph White, and that he took possession of said steamer by authority of Samuel J. Pentz, and without any authority of John W. D. Pentz, and that the latter in no way directed or authorized said White to act as his master of said vessel, and that said White, in contracting said debt, did not contract as John W. D. Pentz's master of said steamer, and on a contract with said Pentz, on orders given by the said White as for said Pentz. then the plaintiffs cannot recover, and that there is no evidence in this cause that said White was the defendant's master, or that he contracted said debt as for said Pentz.

4. If the jury find the debt mentioned in plaintiffs' bill of particulars, and that it was contracted by Joseph White at the city of Baltimore, and that said vessel was registered at the port of Baltimore, and that said Pentz resided in the city of Baltimore at the time covered by said bill of particulars, and that said Pentz in nowise ordered or directed said repairs, then the plaintiffs are not entitled to recover, unless Pentz ratified subsequently the acts of said White, and that there is no evidence of such ratification.

5. If the jury shall find from the evidence that John W. D. Pentz never took possession of the steamer Massachusetts, and never exercised acts of ownership over her, except as to the mortgage, and the explanation thereof given by him, and that said Pentz never run, or authorized

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PENTZ v. CLARKE.

[No. 1.

the running of said steamer, or authorized White to repair said steamer, or appointed officers for her, then the plaintiffs are not entitled to recover, although the jury may find that White ordered said repairs for said steamer on behalf of the owners.

6. If the jury find that said steamer was taken possession of by said White, under authority from Samuel J. Pentz, and that said White acted as captain, by authority of himself and said S. J. Pentz, and that said White contracted the debt mentioned in evidence, and that before White took charge of said boat, J. W. D. Pentz refused to allow said vessel to be run under his authority, or so as to make him liable in any way whatever for account of said vessel, and refused to be responsible for one cent, on account of said vessel, then the plaintiffs cannot recover.

The court (Dobbin, J.) granted the plaintiffs' prayers and rejected those of the defendant. To this ruling of the court the defendant excepted, and the verdict and judgment being for the plaintiffs, he appealed.

The cause was argued before Miller, Alvey, and Robinson, JJ., by agreement of counsel, and Bartol, C. J., and Stewart, J., participated in its determination.

William R. Reese & John Carson, for the appellants. White, in ordering the repairs, acted in his relation or capacity as owner, and not as master. Being himself a half owner, his acts must necessarily be referred to his higher capacity as principal or owner, and not master. But for one owner to bind his co-owner for repairs made at the home port where his co-owner resides, there must be express authority from such co-owner, or a holding out amounting to such authority; no such authority results from the relation of co-ownership per se. The question is always one of agency, to be found by the jury. 1 Par. Mar. Law, 87; Brodie v. Howard, 84 Eng. Com. Law, 117; Hackwood v. Lyall, Ib. 124; Myers v. Willis, 86 Ib. 887; Curling v. Robertson, 49 Ib. 338; Mitcheson v. Oliver, 85 Ib. 444; McCready v. Woodhull, 34 Barbour, 80; Milburn v. Guyther, 8 Gill, 92; Elder v. Larrabee, 45 Maine, 594; Revens v. Lewis, 2 Paine C. C. R. 202; Stedman v. Feidler, 25 Barb. 605; Morgan v. Shinn, 15 Wallace, 110; Howard v. Odell, 1 Allen, 85.

There is no evidence in the case that John W. D. Pentz ever gave White authority expressly to order these repairs, or held White out as possessing such authority; this disposes of the whole case.

Both the plaintiffs' prayers are erroneous and calculated to mislead the jury, because they base the plaintiffs' right to recover upon White's acts in his relation as master and not as owner. And even if it be held that the plaintiffs' first prayer submits to the jury the question of Pentz's liability by reason of White's acts being done in the capacity of part owner, it is erroneous and misled the jury, because they were not further instructed to find that Pentz had given express authority to White, or held him out as having such authority to bind him. As the prayer now stands, the jury were directed to find against Pentz, though they might believe that White was in nowise the agent of Pentz.

The plaintiffs' first prayer is further erroneous and calculated to mislead the jury, because it bases Pentz's liability upon White's relation as owner and master combined, which cobmination of relation to the vessel

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PENTZ v. CLARKE.

[No. 1.

has no legal significance in fixing Pentz's liability, though the jury may from the form of this prayer have inferred otherwise.

But suppose White's acts are not to be referred exclusively to his relation as owner, but also as master, what then? Does it follow that by his mere relation as master he was authorized to bind the general owners, irrespective of the questions how he was appointed, and by whom he was appointed, or the place where the repairs were done?

The plaintiffs' prayers, granted by the court below, assert the proposition that because White was master, and ordered repairs, therefore Pentz as general owner was responsible for them. This doctrine of the liability of general owner for the acts of the master, from his mere relation to the vessel as master, was long since repudiated by this court, and the law held otherwise. Henderson v. Mayhew, 2 Gill, 393; Stirling & Ahrens v. Loud, 33 Md. 436; Stirling v. Navassa Phosphate Co. 35 Md. 140.

Whatever may have been the law heretofore, the whole current of modern authority is to this point, — whose agent is the party ordering the repairs? The whole question is one of agency, and the law is now so held by the highest tribunals of this country and Great Britain. Myers v. Willis, 84 Eng. Com. Law, 103; Same v. Same, 86 Ib. 887; Mitcheson v. Oliver, 85 Ib. 444; Bernard v. Aaron, 103 Ib. 889; Hibbs v. Ross, 1 Queen's Bench, 534 (Law Reports); The Troubadour, 1 Ad. & E. Rep. 303 (Law Reports); The Great Eastern, 2 Ib. 88 (Law Reports); Mackenzie v. Pooley, 34 Eng. Law & Eq. 486; Schooner Freeman v. Buckingham, 18 Howard, 182; Thomas v. Osborn, 19 Ib. 22; Morgan's Assignees v. Shinn, 15 Wallace, 110; Howard v. Odell, 1 Allen, 85; Blanchard v. Fearing, 4 Allen, 118; Webb v. Peirce, 1 Curtis, 104; Mayo v. Snow, 2 Curtis, 102: Macy v. Wheeler, 30 N. Y. 241; Revens v. Lewis, 2 Paine C. C. R. 202; Stedman v. Feidler, 25 Barbour, 605; The Phebe, 1 Ware, 269.

In all cases where the owner is out of the possession, and there is an intervening possession, or ownership pro hac vice, whether it be by formal charter or by verbal hiring, or by sailing on shares, or on a "lay," or by permission or consent, the master is the agent, not of the general owners, but of the ownership which is in possession, managing the vessel. Reeve v. Davis, 28 Eng. C. Law, 96; Bernard v. Aaron, 103 Ib. 889; Fox v. Holt, 36 Conn. R. 571; 4 Benedict, 297; Tucker v. Stimson, 12 Gray, 487; Baker v. Huckins, 5 Gray, 596; Webb v. Peirce, 1 Curtis, 104; Mayo v. Snow, 2 Ib. 102; Bonzey v. Hopkins, 55 Maine, 98.

The evidence in this cause shows that White was appointed master by Samuel J. Pentz. That he did not consult J. W. D. Pentz and obtain his consent. That J. W. D. Pentz was not in possession of the steamer; did not appoint her master; and had nothing to do with her running or earnings. White therefore, as master, was not J. W. D. Pentz's agent, and did not bind him.

But even if White was master, he is not the general agent of the owners. 1 Parsons Mar. Law, 380.

As such master he is not authorized, without express authority from the owners, to bind them by ordering repairs at the home port, where the owners reside. 1 Parsons Mar. Law, 380, 381, 382, 383, note;

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PENTZ v. CLARKE.

[No. 1

Jordan v. Young, 37 Maine, 276, 280; Elder v. Larrabee, 45 Ib. 594; Dyer v. Snow, 47 Ib. 257; Woodruff v. Stetson, 31 Conn. 61; Fox v. Holt, 36 Conn. 571; 4 Benedict, 296-7; Gager v. Babcock, 48 New York, 154; Mitcheson v. Oliver, 85 Eng. C. L. 445; The Great Eastern, 2 Adm. & E. Rep. 96, Law Reports, 1867, 1869; Arthur v. Barton, 6 Meeson & Welsby, 136; Taylor v. Steamer Commonwealth, U. S. District Court E. D. Missouri, reported in vol. 20, No. 9, Int. Rev. Record, August 31st, 1874.

The plaintiffs' prayers are radically defective. Because they blend White's two capacities, as owner and master, together; they ignore the question of agency, whether White acted as master or owner; they ignore the fact that the repairs were made at the home port; and they ignore the facts showing that Pentz was out of possession, and that White had exclusive possession of the vessel.

Frederick T. Baker & John M. Carter, for the appellees. This is clearly not a case of ownership pro hac vice, even from the appellant's own testimony. To create this relation there must be a transfer or conveyance of some sort from the legal owner to the owner pro hac vice, and that arrangement, or the fact that it exists, must be known to the material-man to exempt the legal owner from responsibility for necessary repairs. Saxton v. Reed, Hill & Denio N. Y. Supt. Ct. Rep.

328.

White's relation to the vessel was that of managing owner and master. The appellant, in his testimony, says he was very seldom on board of her. took no interest in her, and did not know she needed repairs.

The appellees' prayers were properly granted, whether White be considered as master, or master and managing owner. In either case, White was agent of the co-owner, and could bind him for necessary repairs to the vessel, even at the home port.

The first prayer asserts that the appellant having been shown to be coowner of the vessel, White the other co-owner and master, the repairs to have been ordered by White as such co-owner and master, and to have been necessary for the running of the vessel, therefore the plaintiffs were entitled to recover, although no special authority from the appellant may have been shown.

A co-owner, by ordering repairs and other necessaries for the employment of a ship, may render his co-owners liable, unless their liability be expressly provided against. Abbott on Shipping, marg. p. 105; Shemerhorn v. Loines, 7 Johnson, 310; Muldon v. Whitlock, 1 Cowen, 290; King v. Lowry, 20 Barbour, 532; Hardy v. Sproule, 29 Maine, 258.

The managing owner and master is agent for the co-owners in ordering necessary repairs. Parsons' Maritime Law, 97, 8-9; Barker v. Highley, 109 E. Č. L. R. 27; Whitwell v. Perrin, 93 Ib. 412.

Especially is this the case in the absence of any known dissent, and this authority extends to the home port. Story's Agency, sec. 40; Collyer on Partnership, sec. 1226; James v. Bixby, 11 Mass. 34; Dawson v. Leake, Dowling & Ryland N. P. C. 52; Parsons on Shipping & Adm. sec. 100.

The second prayer differs from the first in that it deals with White in his relation as master only. The owners of a vessel are liable for neces

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PENTZ v. CLARKE.

[No. 1.

sary repairs furnished upon the order of the master, unless it be shown that the master had no authority to order them, and that the parties furnishing had knowledge of the want of authority. Story's Agency, sec. 298; 3 Kent's Com. marg. p. 156; Rich v. Coe, Cowper, 636; Glendon v. Tincler, Holt's N. P. C. 586; Holcroft v. Halbert, 16 Ind. 258; McCready v. Thorne, 49 Barbour, 440; Henshaw v. Rollings, 5 Louisiana, 335; Glading v. George, 3 Grant's Cases, 290; Winsor v. Maddock, 64 Penn. 231.

The master, as such, is agent for the owners of a vessel, and has power to bind them for necessary repairs, unless his power has been in some way suspended or restricted, and that suspension or restriction brought home to the creditor. And this authority extends to the home port. Conklin's Admiralty, 73-4-5; Abbott on Shipping, marg. p. 134; Provost v. Patchin, 5 Selden, 235; Holcroft v. Halbert, 16 Ind. 258; Musson v. Fales, 16 Mass. 335.

ROBINSON, J., delivered the opinion of the court.

This suit was brought against the appellant, part owner of the steamer Massachusetts, for work done and materials furnished by the appellees, in repairing said steamer, in the city of Baltimore, the home port, where the appellant resided.

The evidence shows the repairs were necessary, and that they were done upon the order of the captain, who was also at the time part owner of the steamer, but without any authority from the appellant. The main question presented by the record is, whether the captain had the authority under such circumstances, to pledge the credit of the appellant for the repairs thus ordered? It is a question of importance to the commercial interests, and it is to be regretted that the decisions in this country are so conflicting. Without examining at length the many cases in which this question has been considered, it is sufficient to say, that in some states it has been held, that the relation of master and owner, per se, confers upon the former authority to bind the latter for necessary repairs, either in a foreign port, or in the home port where the owner resides. Glading v. George, 3 Grant's Cases, 290; Winsor v. Maddock, 64 Penn. 231; McCready v. Thorne, 49 Barbour, 438; Provost v. Patchin, 5 Selden, 235.

In other states this authority has been limited to a foreign port, or to the home port where the owner did not reside, and was not within easy access of the master. Jordan v. Young, 37 Maine, 276; Elder v. Larrabee, 45 Ib. 594; Woodruff v. Stetson, 31 Conn. 61; Fox v. Holt, 36 Conn. 571; Taylor v. Steamer Commonwealth, U. S. District Missouri, Int. Rev. Rec. Aug. 31, 1874; Parsons Mar. Law, 380-383, note.

In England, whatever may have been the rule laid down by the earlier cases, all the later decisions hold, that no such authority arises from the relation of master and owner, per se; and that in order to bind the owner for necessary repairs done at the home port, the master must have special authority for that purpose; or the owner must have held out the master as having such authority; or he must have ratified the contract after it was made.

In Arthur v. Barton, 6 Mees. & Wels. 142, Lord Abinger, C. B. said: